February 16, 2012

Appeals Court: Violent Crime Not Always a 'Crime of Violence'

Just because a crime is violent, doesn't always mean it's a "crime of violence" under the law, the District of Columbia Court of Appeals found in a
ruling (PDF) this morning.

A "crime of violence" conviction means a defendant is eligible for tougher sentencing. Unlike the U.S. Code, though, which defines a "crime of violence" based on the type of act, the court wrote that the D.C. Code defines it as a specific set list of offenses.

In the underlying case, Alan Colter was convicted of felony assault in the shooting of two people. One of his convictions was for possession of a firearm during a crime of violence, but Colter argued that he hadn’t committed a “crime of violence” under the D.C. Code. The three-judge panel agreed, finding that felony assault isn’t defined as a “crime of violence” in Washington.

“There is no doubt that appellant committed violent crimes, as that term is commonly understood,” Judge John Fisher wrote. “Here, however, we are dealing with definitions created by statute.”

Although the court vacated the firearm possession conviction, Fisher added that the ruling will have “little impact” on Colter, since he still has to serve the same amount of jail time for the rest of his convictions.

According to the opinion, the District of Columbia Council created the offense of assault with significant bodily injury – commonly known as felony assault – in 2007. “However, whether by design or through oversight, the Council did not add the newly-created offense…to the list of crimes of violence,” Fisher wrote.

The judge added, though, that assault with significant bodily injury is “a less serious offense” than most of the offenses defined as a “crime of violence” in the D.C. Code, which might explain the omission. “Indeed, if added, assault with significant bodily injury would carry the lowest maximum penalty of any crime of violence listed in the statute,” he wrote. Those more serious crimes include everything from assault with intent to kill and first-degree sexual abuse to an act of terrorism and detonation of a weapon of mass destruction.

Colter’s attorney, solo practitioner Judith Lovelace, did not immediately return a request for comment today. A spokesman for the U.S. attorney’s office declined to comment.

Chief Judge Eric Washington and Senior Judge John Steadman also heard the case.